Land and Environment Court New South Wales Medium Neutral Citation: Zembis v Sutherland Shire Council [2023] NSWLEC 1364 Hearing dates: Conciliation conference on 8 June 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The applicant's written request prepared by Planning Ingenuity dated 28 May 2023, pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, to vary the building height development standard in clause 4.3(2) is upheld. (2) The appeal is upheld. (3) Development Consent is granted to Development Application DA22/0248 for alterations and additions to the existing dwelling, construction of a garage, swimming pool, landscaping and other associated works, at 421 Willarong Road Caringbah South, subject to the conditions in accordance with Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6 Sutherland Shire Local Environmental Plan 2015, cll 2.2, 4.3, 4.4, 4.6, 5.6, 5.7,5.10, 5.21, 6.1, 6.2, 6.4, 6.5, 6.7, 6.14, 6.16, 6.17 Texts Cited: Sutherland Shire Council, Community Engagement Policy, 2019 Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Peter John Zembis (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: N Hammond (Applicant) B Jackson (Respondent) Solicitors: Hones Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2023/26455 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA22/0248 (the DA) for alterations and additions to the existing dwelling, construction of a garage, swimming pool, landscaping and other associated works (the proposed development), at 421 Willarong Road Caringbah South. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 June 2023. I presided over the conciliation conference, which commenced with a site inspection. 3. Revised plans (dated 8 June 2023) constituting an amendment to the DA were submitted by the applicant and these revised plans formed the basis of the discussion at the conciliation conference. 4. Two objectors (from adjoining properties) attended the site and made submissions. 5. At the conciliation conference following the on-site view, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows: 1. The development application was lodged by the registered proprietors of the subject site who provided owner's consent; 2. The development application was notified by the respondent between 18 April 2022 and 2 May 2022 as required under the provisions of Sutherland Shire Council's Community Engagement Strategy 2019. Four (4) submissions were received in response to that notification. 3. In relation to the provisions of the Sutherland Shire Local Environmental Plan 2015 (SSLEP): 1. The subject site is zoned C3 – Environmental Management pursuant to the provisions of cl 2.2 of the SSLEP; and 1. the proposed alterations and additions to the existing dwelling, construction of a garage, swimming pool, landscaping and other associated works are permissible with consent in the C3 Environmental Management zone within which the subject site is located; 2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out. 1. Pursuant to cl 4.3(2) of the SSLEP in relation to the height of buildings (HoB) a development standard of building height of 8.5 metres is applicable to development of the subject site; and 1. the Amended Application proposes a building height of 10.4 metres, which represents a 1.9 metres (or 22.3%) exceedance of the HoB development standard); 2. the existing dwelling currently erected on the subject site (which is to be retained) has a maximum height of 10.42 metres which already breaches the maximum building height by a similar margin. The non-compliance with the building height is primarily a result of the subject site's steep topography and historic excavation to establish the existing building; and 3. the applicant has submitted an amended written request pursuant to the provisions of cl 4.6 of the SSLEP, prepared by Planning Ingenuity, seeking to vary the applicable HoB development standard. 1. The parties submit, and I am satisfied, that the applicant's amended cl 4.6 written request is well founded and that the variation to the HoB development standard is acceptable noting that: 1. The provisions of cl 4.3(2) of SSLEP provide a maximum height of buildings of 8.5 metres for development on the subject site. The breach in the HoB development standard arises from the proposed alterations and additions to the existing dwelling being the result of the retention of the dwelling with its non-compliant building height. 2. I am satisfied that compliance with the HoB development standard is unreasonable or unnecessary, as required under cl 4.6(3)(a) of SSLEP because the proposed development achieves the objectives of the HoB development standard notwithstanding the HoB exceedance for the reasons provided within the applicant's written request, which I adopt; 3. I am also satisfied that there are sufficient environmental planning grounds to justify contravening the HoB development standard, as required under cl 4.6(3)(b) of SSLEP, for the following reasons: * the existing building on the subject site, which is proposed to be altered under the applicant's DA, includes an exceedance to the HoB development standard in cl 4.3 SSLEP as a consequence of the topography of the site and the subject application in this appeal retains an exceedance for the same site specific reasons; * the site topography has a fall of approximately 6m over the length of the existing dwelling and the proposed alterations and additions have been designed to respond to the topography of the site and existing built form through complementing, and replacing where necessary, the existing features of the dwelling; and * the proposed alterations reduce the height of the existing dwelling on the Subject Site from 10.42 metres to 10.4 metres while providing an increased setback of the first floor level to the side boundary of the subject site. 1. Approval of the proposed development will be in the public interest for the reasons provided above (at [(ii)] and [(iii)]) and because the proposed development is consistent with the objectives for the HoB development standard and for development within the C3 zoning of the subject site for reasons provided within the applicant's written request, which I also adopt. 1. The provisions of cl 5.6 of the SSLEP concerning architectural roof features applies to the subject site and I am satisfied that all matters set out in cl 5.6(3) have been considered; 2. The provisions of cl 5.7 of the SSLEP concern development below the mean high water mark and no works are to be carried out below the mean high water mark and accordingly cl 5.7 is not engaged; 3. The provisions of cl 5.10 of the SSLEP concern heritage conservation, the subject site is not identified as being an item of heritage significance, and is not located within the vicinity of an item of local heritage significance nor is it within a heritage conservation area; 4. The provisions of cl 5.21 of the SSLEP concern flood planning and the subject site is not mapped as being in a flood prone area, therefore cl 5.21 is not engaged; 5. The provisions of cl 6.1 of the SSLEP concern acid sulfate soils, the development does not include any works that will lower the water table, and accordingly the provisions of cl 6.1 are satisfied; 6. The provisions of cl 6.2 of the SSLEP concern earthworks. The DA proposes relatively minor excavation to accommodate the proposed modified built form, the footings and for the proposed swimming pool. The Parties have confirmed, and I am satisfied, that the matters identified in cl 6.2(3) of SSLEP have been considered, noting the Parties agreed conditions of consent include conditions to manage and mitigate identified potential impacts of excavation; 7. The provisions of cl 6.4 of the SSLEP concern stormwater management and the proposed development will connect to the existing stormwater drainage system and does not include any proposed increase to the impermeable surfaces on the subject site. Further, the parties agree, and I am satisfied, that the proposed development is designed to achieve the outcomes identified under the provisions of scll 6.4(3)(a) to (c) 8. The provisions of cl 6.5 of the SSLEP concern environmentally sensitive land in relation to terrestrial biodiversity, and the subject site is identified as "Environmentally Sensitive Land" on the Terrestrial Biodiversity Map associated with the SSLEP. The parties agree, and I am satisfied that all of the matters set out in cl 6.5(3) have been considered in relation to the proposed development; 9. the provisions of cl 6.7 of the SSLEP concern environmentally sensitive land, and in particular riparian land and watercourses. The parties agree, and I am satisfied that all of the matters set out in cl 6.7(3) have been considered in relation to the proposed development such that it achieves outcomes required under cl 6.7(4) of SSLEP; 10. The provisions of cl 6.14 of the SSLEP concern landscaped areas in certain residential, employment, conservation, and waterway zones. The Landscape Area Map associated with the SSLEP requires a minimum landscaped area on the subject site of 40% , and the applicant's amended application proposes a landscape area of 48.64% of the subject site; 11. The provisions of cl 6.16 of the SSLEP concern general urban design matters, the parties agree, and I am satisfied that all of the matters set out in cl 6.16(1) have been considered in relation to the proposed development; and 12. The provisions of cl 6.17 of the SSLEP concern urban design in relation to residential accommodation, and the parties agree, and I am satisfied that of all of the matters set out in cl 6.17(2) have been considered in relation to the proposed development. 1. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 the applicant's amended development application is accompanied by an updated BASIX certificate (Certificate No. A441011_03 dated 6 June 2023) which is consistent with the amended application. 2. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP): 1. The parties had advised, and I am satisfied, that the subject site has been used historically for residential purposes, and there is no proposed change of use, and therefore no requirement for any further site investigations to satisfy the provisions of cl 4.6 of the Resilience SEPP; 2. The Parties have further advised, and I am satisfied, that the matters in cl 2.10(1) of the Resilience SEPP have been considered, and that, as required under s 2.10(2) of the SEPP the development is designed, sited and will be managed to avoid any adverse impacts required under s 2.10(1); 3. The Parties have also advised, and I am satisfied that, as required under the provisions of s 2.11 of the Resilience SEPP: 1. The matters requiring consideration under s 2.11(1)(a) have been considered; and 2. The proposed development is designed, sited and will be managed to avoid, minimise or mitigate any adverse impacts referred to in s 2.11(1)(a); 1. In relation to the State Environmental Planning Policy (Biodiversity and Conservation) 2021(Biodiversity SEPP), specifically Ch 2 – Vegetation in Non-Rural Areas, the development proposes the removal of vegetation within the scope of s 2.6 of the Biodiversity SEPP. The majority of the trees proposed for removal have been identified by the applicant's arborist as being of low retention value, and all and all trees to be removed are proposed to be replanted at a 2:1 ratio with local native species as shown in the landscape plan (part of the amended application plans). 2. The parties submit, and I am satisfied, that the DA as amended has considered the following relevant provisions in Sutherland Shire Development Control Plan 2015 (the DCP) such that the controls in those chapters are met or if they are not met they achieve the objectives of those controls as required under s 4.15(3A)(b) of the EPA Act: 1. Chapter 1 - Introduction; 2. Chapter 2 – Dwelling Houses; 3. Chapter 34 – Ancillary Development; 4. Chapter 38 – Stormwater and Groundwater Management; and 5. Chapter 39 – Natural Resource Management. 1. Having considered the advice of the parties provided above at [8], I am satisfied that: 1. The applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act; 2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and 3. Approval of the proposed development Is in the public interest. 1. Further, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the applicant amending development application DA22/0248 to rely upon the following documents ( 'the amended application'): 1. Amended architectural plans prepared by Boli Designs (revision B) listed as follows: Dwg Title Drawn by Dated A100 Cover Sheet Boli Designs 14 May 2023 A101 Site Plan Boli Designs 14 May 2023 A201 Lower Ground Floor & Ground Floor Plan (Existing) Boli Designs 14 May 2023 A201 Lower Ground and Ground Floor Plan Boli Designs 14 May 2023 A203 First Floor & Roof Plan Boli Designs 14 May 2023 A204 Demolition Plan Boli Designs 14 May 2023 A300 Elevations Boli Designs 14 May 2023 A301 Existing Highlighted Areas Boli Designs 14 May 2023 A400 Section A-A & Driveway Cross-Section Boli Designs 14 May 2023 A401 Pool Plans & Section Boli Designs 14 May 2023 A601 Floor Space Ratio Plan Boli Designs 14 May 2023 1. BASIX Certificate no. A441011_03 prepared by Thermal Performance dated 6 June 2023; 2. Amended cl 4.6 Written Variation Request – Building Height prepared by Planning Ingenuity dated 26 May 2023; and 3. Addendum Statement of Environmental Effects prepared by Planning Ingenuity dated June 2023. 1. The amended application was filed with the Court on 8 June 2023. 1. The Court orders: 1. The applicant's written request prepared by Planning Ingenuity dated 28 May 2023 pursuant to clause 4.6 of the Sutherland Shire Local Environmental Plan 2015, to vary the height of building development standard in clause 4.3(2) is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application DA No. 22/0248 for alterations and additions to the existing dwelling, construction of a garage, swimming pool, landscaping, and other associated works, at 421 Willarong Road Caringbah South, subject to the conditions in accordance with Annexure A. G Kullen Acting Commissioner of the Court Annexure A (220021, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2023